Kishor Parasram Kosre vs State Of Mah. Thr. Pso Ballarsha
2017 Latest Caselaw 3938 Bom

                                                                                                    C.APEAL.30.04
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                               CRIMINAL APPEAL NO.30/2004

          Kishor s/o Parasram Kosre 
          Aged about 40 years, occu: Labourer 
          R/o Lalbodi, Ballarsha
          Tah. Ballarsha, Dist.Chandrapur.                                                     ..   APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through P.S.O., Ballarsha.                                                           ... RESPONDENT

...........................................................................................................................
           Shri Mahesh Mourya, Advocate for the appellant
           Mr. V.P. Maldhure, Additional Public Prosecutor for respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.
                                                     DATE OF  RESERVING :19.06.2017
                                                     DATE OF PRONOUNCEMENT: 04.07.2017

JUDGMENT: 

This Appeal is preferred against the judgment and order dated 17th

December, 2003 passed by the learned Additional Sessions Judge, Chandrapur

in Sessions Case No.54/1997 thereby convicting the appellant under section

307 of the Indian Penal Code and sentencing him to suffer R.I. for a period of

three years and to pay a fine of Rs. 2,500/-, in default, to suffer R.I. for further

period of one month. The learned trial Judge further directed that if the fine

amount is paid, out of the same Rs.500/- be paid as compensation to each of

the injured persons.

2. The prosecution case in nutshell is that, the appellant was a carpenter

C.APEAL.30.04

by profession. As per the orders placed by Shantabai (PW4), the mother of the

complainant-Sunil Kundawar (PW3), the appellant had prepared some

furniture. Just prior to the incident, Shantabai (PW4) placed another order

with the appellant for preparing a zoola (swing) and a chaurang (square

stool). It is the case of the prosecution that Shantabai advanced some amount

for the preparation of the said furniture. However, the appellant did not

comply with the said order. As a result, differences cropped up between

Shantabai and appellant. The differences flared up to the extent that Shantabai

removed the bicycle from the house of the appellant and retained the same

by keeping it in her house. On the date of incident, i.e. 12.01.1997 at about

5.00 p.m., Shantabai (PW4) and her sons Vitthal (PW5) and Sunil (PW3)

were present at their residential house. When Shantabai was standing near the

door of her house; Sunil (PW3) was ironing the clothes in the house and

Vitthal (another son) was inside the house, the appellant armed with Wasla

(sharp edged axe used by the carpenter) rushed in the premises of the house

of Shantabai and suddenly assaulted Shantabai by giving blows of Wasla on

her left cheek and right side of chest. Due to the said act, Shantabai sustained

bleeding injury and she shouted for help. On hearing her shouts, Sunil (PW

3) and Vitthal (PW5) who were present in the house, rushed to that place.

Vitthal reached first in point of time and then Sunil. As PW5 tried to rescue

Shantabai from the assault perpetrated upon her by the appellant, the

appellant immediately turned to PW5 and injured him by giving blows of the

C.APEAL.30.04

axe on his abdomen. Sunil also rushed to that place to help his mother.

However, the appellant also assaulted him by giving blows of axe on his right

shoulder. After assaulting all of them, the appellant left that place. Few persons

gathered at the place of the incident and they took all of them to Primary

Health Centre, Ballarshah. All of them were admitted in the hospital. The

police recorded the complaint of PW 3-Sunil on the basis of which they

registered the offence punishable u/ss. 326 and 307 of the IPC. Further

investigation was carried out by the Police. Charge-sheet was filed in the

Court of learned trial Judge. Charge was framed by the learned Addl. Sessions

Judge, as stated above.

3. I have heard Shri Mahesh Mourya, learned counsel for the appellant as

also Shri V.P. Maldhure, learned A.P.P. for the respondent-State. The learned

counsel for the appellant vehemently argued that the learned trial Judge has

failed to consider the material discrepancies in the testimony of the injured

witnesses and has wrongly come to the conclusion that the appellant was the

perpetrator of the crime. According to the learned counsel for the appellant,

the judgment and order passed by the learned trial Judge is illegal and

perverse and as such, liable to be set aside.

4. Per contra, learned A.P.P. contended that the trial Judge has considered

the entire evidence on record in its right perspective and has rightly convicted

the appellant for the offence punishable u/s 307 IPC. Learned APP submitted

that the testimonies of the eye witnesses, who were injured, are consistent,

C.APEAL.30.04

cogent and trustworthy and, as such, the learned trial Judge has rightly come

to the conclusion that the appellant is guilty for the offence with which he is

charged.

5. In order to consider the rival contentions of the respective parties, it is

necessary to go through the evidence on record minutely. The prosecution has

heavily placed reliance upon the testimonies of the injured witnesses, namely,

Sunil (PW3), Shantabai (PW4) and Vitthal (PW5). It is the specific case of

the prosecution that the appellant entered inside the house of the injured

witnesses and firstly attacked PW4-Shantabai, then PW5-Vithal and lastly PW

3-Sunil, as PW5 and PW3 tried to rescue their mother-Shantabai, from the

assault of the appellant.

6. So far as the testimony of PW4-Shantabai is concerned, she has deposed

in a very natural manner. PW4 stated that she had paid Rs. 2000/- to the

appellant for preparing one Zoola and one chaurang. The appellant returned

an amount of Rs. 1,000/- to her and owed the remaining amount which he

did not return inspite of demand on umpteen times. The appellant said to

her that he would not return the remaining amount and she is free to do

whatever she could do in the matter. Therefore, PW4 took the bicycle of the

appellant and kept it in her house. Furious at the gesture of Shantabai, the

appellant went to his house and brought an axe (Wasla) with him and entered

the house of the complainant. At the relevant time PW3-Sunil and PW 5-

Vitthal were present in the house. Sunil (PW3) was ironing the clothes,

C.APEAL.30.04

whereas Shantabai was standing at the door of her house and Vitthal (PW5)

was changing his clothes for going out for a stroll. The appellant gave the

blows of axe on her left cheek and upper right chest. The appellant assaulted

Vitthal on his abdomen, who rushed to rescue her. Sunil (PW3) also came

there running for help. The appellant also assaulted by giving blows of axe on

his right shoulder. Thereafter the appellant left the spot. Some people gathered

at the place of the incident and they took all three of them to Primary Health

Centre, Ballarshah. PW4 was medically examined at PHC and then was

referred to Chandrapur Hospital. Shantabai stated that she was hospitalized

for a few days at Chandrapur hospital. PW4 identified the weapon before

the Court. It is noticed that the testimony of PW4-Shantabai is not shaken

in the cross-examination.

7. As far as the testimony of PW5-Vitthal is concerned, according to him,

at about 5.00 p.m, the appellant entered their house. It appears from his

testimony that on hearing the shouts of his mother, he came in the verandah

of the house where the alleged incident had taken place. He saw his mother

in an injured condition in the courtyard of his house. He caught hold of his

mother and tried to help her, the appellant assaulted him by means of an axe

on auxillary area of his body, due to which he sustained injuries. Thereafter

his brother-Sunil arrived there. The appellant assaulted him too, on his

shoulder. PW5-Vitthal, then, ran away towards the godown and fell down at

that place. Thereafter, he came to the road and and by an auto-rickshaw

C.APEAL.30.04

proceeded to the hospital. PW5 was treated firstly at PHC Ballarshah and

thereafter was referred to Chandrapur Hospital. PW5 specifically stated that

one person by name Hafizkhan was sitting near the spot where he had fallen

down near the godown. It is worthy to note that said Hafizkhan (DW1) was

examined by the appellant as a defence witness. The testimony of PW5 has not

been shattered in the cross-examination and it corroborates with the

testimony of PW3 on all material aspects.

8. The prosecution examined the third injured witness PW3-Sunil.

According to him, at about 5.00 pm in the evening, he had returned from his

work and was ironing clothes. He had noticed one bicycle in front of his

house in the courtyard. On making enquiry with his mother, she did not tell

him anything about it. After some time, the appellant came to his house

holding an axe used by the carpenter for cutting wood. His mother-Shantabai

was sitting in the verandah of the house whereas his brother was inside the

house. According to PW3, the appellant inflicted blows of axe on his mother

on her cheek and chest. His mother raised shouts. On this, his brother came

out of the house. The appellant inflicted axe blow on the abdomen of his

brother. The appellant tried to give a blow on the head of PW3 and since he

bent down, he received the blow on his shoulder. He received injury to his

shoulder due to the said blow. According to PW3, his mother became

unconscious. His brother also sustained injury due to the blow of axe, however,

he ran away. So also the accused went away. Thereafter he took his mother to

C.APEAL.30.04

the hospital in an auto-rickshaw. She was admitted in the hospital. PW3 was

also admitted in the hospital. He narrated the incident to the police. The police

recorded his compliant (Exh.23). Significantly, the contents in the complaint

are in consonance with the evidence of PW 3 before the Court. No material

discrepancies are noticed in his testimony.

9. On careful scrutiny of the testimony of PW3-Sunil, PW4-Shantabai and

PW5-Vitthal, it is noticed that the testimonies of all the three witnesses

corroborate with each other on material aspects. The testimonies of these

witnesses are cogent and consistent and all three are found to be trustworthy

witnesses. No doubt, there is discrepancy in the ocular testimony of PW3 and

PW4 with the medical evidence of PW6 with regard to the injury to the chest

of PW 4. In this regard, it may be mentioned here that the ocular testimony

of a witness has greater evidentiary value. In the instant case, the Medical

Officer who was posted at a Primary Health Centre at Ballarshah which is a

Taluqa place and has examined three injured persons from a family must not

have noted the injuries caused to the mother of complainant i.e. PW4-

Shantabai carefully. However, PW3-complainant has also mentioned about the

injury to the chest of Shantabai in his complaint (Exh.23) which is a

contemporaneous document, so also the complaint is lodged promptly.

Shantabai PW4 also stated about the injury to the chest. There is no reason

for PW3 as well as PW4 to speak lie about the said injury. On that basis, the

evidence of PW3 and PW4 cannot be discarded which is otherwise consistent

C.APEAL.30.04

and cogent.

10. In the case of Sadhu Saran Singh vs. State of Uttar Pradesh

and others, reported in (2016) 4 SCC 357, it has been held by the Hon'ble

Apex Court that when there is inconsistency between medical evidence and

ocular evidence, primacy has to be given to ocular evidence, particularly in

case of minor discrepancies. In the case of Umesh Singh vs. State of Bihar,

reported in (2013) 4 SCC 360, it has been held that between medical and

ocular evidence, ocular evidence must be preferred. Furthermore, in the case

of State of Haryana v. Bhagirath, reported in (1999) 5 SCC 96, in para no.

15 it was held as follows :

"15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If the doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable."

The Hon'ble Supreme Court, further, held in paragraph no.35 as

under :

"35. Where the eye witnesses' account is found credible and trustworthy, a medical opinion pointing out to alternative possibilities cannot be accepted as conclusive. The eyewitnesses'

C.APEAL.30.04

account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."

11. As far as the medical evidence is concerned, it is apparent that the

medical evidence corroborates with the ocular testimonies of the injured

witnesses except the injury to the chest of PW 4 which was not noted by the

Medical Officer. PW6-Dr. Govindlal Kuril found the following injuries on the

body of Sunil (PW3) :-

"Incised deep wound on right deltoid region of the arm, deep up to bone with complete cut off of deltoid muscles about one and one fourth inch with sharp margin."

According to PW6 Dr.Kuril, the said injury could be caused by a heavy

and sharp object, like axe (Wasla) which was shown to him. PW 6 issued a

medical certificate of Sunil at Exh. 31 on the same day.

PW6 Dr.Kuril examined PW5-Vitthal and found the following injuries:

" Incised deep oblique injury over chest, vertical curve about six inches in length with sharp margins, deep upto ribs of the chest and the length of the injury ran from chest to the abdomen."

PW 6 opined that the said injury could be caused by an axe (Wasla).

He issued medical certificate of Vitthal at Exh.32 and referred him to General

C.APEAL.30.04

Hospital Chandrapur.

PW6 examined Shantabai (PW 4) and noticed the following injuries:-

" (1) Deep incised wound over the face, left side, below eye, two inches in length, deep upto bone, with sharp margins. (2) Incised deep wound on left cheek, lower side of lower lip deep upto bone, five inches in length with sharp margins."

PW 6-Dr.Kuril opined that the said injuries could be caused by an axe

(Wasla). He issued medical certificate of Shantabai at Exh.32. PW6

specifically stated that injuries caused to Shantabai and Vitthal were sufficient

in ordinary course of nature to cause death.

Thus, as stated above, the medical evidence corroborates with the

ocular testimonies of the injured witnesses. No doubt, injury is not noticed on

the chest of Shantabai (PW4) by Dr. Kuril (PW6). Apart from the said

discrepancy in the testimonies of PW4 Shatabai and PW3-Sunil, testimonies of

all three injured witnesses corroborate with each other. It may be noted here

that the said discrepancy does not go to the root of the case and all the injured

witnesses are found to be trustworthy witnesses. The alleged incident had

taken place in the broad-daylight and there is no reason to falsely implicate

the appellant.

12. The prosecution further relied on the testimony of PW12-PSI:

Riyazzuddin Deshmukh. It appears that FIR (Exh.23) was recorded by PSI

Landge, who expired. According to PW12 on 12.01.1997 while the appellant

C.APEAL.30.04

was in police custody, showed his willingness to point out the place where he

had concealed the axe in a tin-box in his house. Thus, his statement was

recorded in the presence of Panchas. Accordingly, the appellant took the

police and the panchas to his house. He opened one tin-box kept in his house

and took out an axe. It was taken charge of by police and the seizure memo

was prepared (Exh.31). The said article which was marked as "A" was

identified by PW12 as well as the injured witnesses. It was a sharp edged

weapon (Wasla). No doubt there is no evidence of Panchas in that regard.

However, I do not find any infirmity with the testimony of the Investigating

Officer in that respect. As already discussed above, all the injured have

deposed before the Court in a most natural way and their testimonies are

found to be reliable one. PW12 has also told about the seizure of clothes of

the appellant as well as the injured persons. Those clothes were taken charge

by PW12, the Investigating Officer.

13. In the case of Mst.Dalbir Kaur vs. State of Punjab, reported in AIR

1977 SC 472, the Hon'ble Apex Court has held that when Police Officers were

examined to prove the fact of recovery at the instance of the accused but other

witnesses were not examined, that by itself would not introduce any serious

infirmity in the evidence furnished by the recoveries which at best was only a

corroborative piece of evidence. The testimony of PW12 has not been shaken

in respect of the recovery of weapon. Nothing is brought on record to

disbelieve his testimony.

C.APEAL.30.04

14. It is interesting to note that the appellant examined Hafizkhan (DW1)

on his behalf. However he was not examined by the prosecution as he did not

attend the Court. According to DW1, on the date of the incident, between

6.30 and 7.00 p.m. he was present on duty at the godown. However nothing

transpired in his presence. No member of Kundawar family came to the

godown in injured condition and lay there. The testimony of DW1 in

examination-in-chief indicates that the said witness wants to support the case

of the appellant. DW1 admitted that he had received a summons for deposing

on behalf of the police. However he did not attend the court to depose as a

witness. He was cross-examined exhaustively by the prosecution. From his

testimony it can be gathered that he has not supported the case of prosecution

as he wanted to support the case of the appellant. Thus, DW1 is not at all

found to be a trustworthy witness and his testimony is of little assistance to the

defence.

15. The clothes of the injured witnesses, the appellant and the weapon

were sent to the Chemical Analyser's office by the Investigating Officer. The

C.A. Report (Exh.14) lends its corroborative support to the prosecution case

in a very consistent manner. The full-pant worn by the appellant at the time

of the incident was found to be stained with human blood of group "A". The

C.A. report discloses the bood group of the appellant as 'A' group whereas

the blood group of the injured persons is of 'B' group. The appellant has not

given any explanation as to how the human blood was detected on the axe

C.APEAL.30.04

and how the human blood of 'A' group and 'B' group were detected on the

full-pant worn by him at the time of incident. Thus, it is not clear as to how

the blood of group 'B' was found on the full-pant of the appellant. The said

fact clearly indicates that at the time of incident, the blood of the injured

persons must have fallen on his clothes and that confirms the presence of the

appellant at the place of incident.

16. Thus, the prosecution has led a clear, consistent and cogent evidence by

examining the injured witnesses. The medical evidence also clinchingly

establishes the injuries sustained by PW3 and PW5. It is settled principle of law

that conviction can be based on the sole testimony of the injured witness even

without any corroboration of the medical evidence. Sole intention to commit

murder is sufficient to prove the guilt of the accused. PW6 Dr.Govind Kuril has

clearly opined that the injuries found on the body of the injured persons are

possible due to sharp and heavy object like axe (Wasla). The CA report

supports the case of the prosecution. The appellant carrying the weapon with

him while entering the house of the injured witnesses itself indicates his

intention to kill them and thus attempted to cause their murder. It has also

come on record that Shantabai (PW4) had placed an order for preparing

furniture by the accused. The appellant had not prepared the said furniture

and he returned some amount to Shantabai, whereas the remaining amount

was not returned by him. Shantabai used to demand the said amount from

him. However he did not pay any heed to the said demand. Considering the

C.APEAL.30.04

adamant attitude of the appellant, Shantabai brought the bicycle from the

house of the appellant which resulted into the appellant assaulting Shantabai

and her sons, who intervened. The FIR is lodged by PW 3 without any delay

as such. The injury caused to Shantabai on her face and cheek and Vitthal on

his chest to abdomen, which are vital parts of the body, confirms the intention

of the appellant to cause death of PW4 and PW5 who fortunately got medical

aid immediately. The appellant also caused serious injury to the shoulder of

PW3. The Medical Officer has specifically opined that the injuries caused to

PW4 and PW5 were sufficient to cause death in ordinary course of nature.

17. The upshot of the above discussion is that the prosecution has proved its

case beyond reasonable doubt. The learned trial Judge has rightly convicted

and sentenced the appellant for an offence punishable under section 307 of

the IPC. No interference is called for as far as the judgment and order passed

by the learned Additional Sessions Judge is concerned. The Appeal, therefore,

fails. Hence the following order :

ORDER

I) Criminal Appeal No. 30/2004 is dismissed.

2) The judgment and order dated 17th December, 2003 passed by the

learned Additional Sessions Judge, Chandrapur in Sessions Case No.54/1997

convicting the appellant for an offence punishable under section 307 of the

IPC and directing him to undergo rigorous imprisonment for three years and

to pay a fine of Rs. 2,500/- in default, to suffer R.I. for further period of one

C.APEAL.30.04

month, along with the fine amount, is maintained.

3) The appellant who is on bail, shall surrender to his bail bonds, within

four weeks, to serve out the remaining part of the sentence.

JUDGE sahare